I practice law -- criminal defense, civil liberties, and academic freedom/student rights cases. I'm a four-decade columnist and contributor to the Boston Phoenix, an alternative weekly, as well as an occasional contributor to The National Law Journal, Massachusetts Lawyers Weekly, The Wall Street Journal, The Boston Globe, and elsewhere. My books include Three Felonies a Day: How the Feds Target the Innocent (Encounter Books, 2009) and The Shadow University: The Betrayal of Liberty on America's Campuses (Harper Perennial, 1999; co-authored with Alan C. Kors). In 1999, Kors and I co-founded the Foundation for Individual Rights in Education (FIRE; www.thefire.org), a 501(c)(3) dedicated to the defense of individual liberties on campus. I live in Cambridge, Massachusetts with my wife, Elsa Dorfman, a portrait photographer.

To the CEO Of Gibson: It's Not Just a War Against Capitalism

Like the blind man who locates the trunk of the elephant and assumes he has the full picture of the behemoth, Gibson CEO Henry Juszkiewicz is perfectly right in accusing the U.S. Fish and Wildlife Service of waging a senseless jihad against his company. Its investigation of Gibson’s importation practices was an obvious overreach, growing out of the agency’s silly current interpretation of a century-old environmental regulation and conducted in the face of overwhelming evidence of the guitar maker’s innocence. But Juszkiewicz’s argument that the raid on his company is part of a larger war by the federal government on American businesses is too narrow and self-focusedto contemplate the whole picture. What Juszkiewicz’s call for government to “stop criminalizing capitalism” misses is that the federal government is using similarly vague statutes and obtuse regulations to wage a war on the entirety of American civil society. Neither Gibson nor capitalism stands alone as a victim of indefensible, and unconstitutional,overreach.

Consider how physicians such as Dr. William E. Hurwitz, who seek to ease the chronic pain of their suffering patients, are routinely hassled, arrested and indicted by Drug Enforcement Agency troopers working with Department of Justice prosecutors, for the supposed crime of disagreeing with federal bureaucrats as to how much OxyContin is appropriate for a given patient or condition. Hurwitz, of McLean, Virginia, was sentenced in 2005 to twenty-five years in prison on drug trafficking charges. The charges arose from confessions by several of Hurwitz’s patients, themselves under investigation by federal authorities, that they had lied to him about their condition and resold the drugs on the streets. In other words, Hurwitz was convicted of being duped by a few wily drug dealers(who, for reasons having to do with their own vulnerability, of course, became “cooperating witnesses” for the prosecution), despite the fact that the vast majority of his patients were legitimate suffers from chronic pain. Furthermore, prosecutors attempted to blame Hurwitz for a clerical error that led to an accidental 1600-pill-a-day prescription, even though the patient recognized the error and didn’t take the pills. While his conviction was overturned on appeal, Hurwitz ended up serving 57 months in prison after admittedly reluctant jurors convicted him in a new trial.

Consider, too,how the Arthur Andersen accounting firm was indicted and promptly put out of business because its independent audit of Enron Corporation and its willingness to defend that audit displeased federal prosecutors intent on enlisting the auditor in its war to convict Enron’s executives. The firm was convicted in 2002 of obstruction of justice because it destroyed documents related to Enron after being put on notice of a federal investigation. No matter to federal prosecutors that Andersen employees destroyed onlydocuments that were required to be purged by the firm’s longstanding document retention policies: the feds argued that the destruction of documents was in and of itself evidence of Arthur Andersen’s corrupt intent to obstruct justice. The prosecutors’ argument survived judicial scrutiny until 2005, when the Supreme Court unanimously held that Andersen had committed no crime (insisting, as a matter of fact, that requiring employees to follow longstanding policies does not amount to evidence of criminal intent). But the Supreme Court’s ruling came too late. Even before its conviction, the firm was already hemorrhaging clients – a full quarter of its public audit clients in just the first six months of 2002 – and by 2005 it was effectively out of business. Indeed, no national auditing firm can possibly survive a federal indictment, and hence the feds wield great power to force these firms to do the government’s bidding or else die.

Other government entities as well cannot escape the long arm of the Department of Justice. State and local politicians and their campaign contributors are routinely indicted for fundraising and other practices that hew to local laws and political cultures but that differ from the feds’ vague prescriptions as to how local governments should operate. In Massachusetts, former Speaker of the Massachusetts House of Representatives Salvatore DiMasi is currently suffering at the hands of the Bureau of Prisons after a conviction for depriving his constituents of the “honest services” owed to them under one of the vaguest federal anti-fraud, “good government” statutes ever devised. DiMasi was recently hauled from his Kentucky prison back to Massachusetts in order to appear before a federal grand jury investigating state legislators for the shocking “crime” of leveraging their control of state agency budgets to get more favorable employment prospects for their political supporters. And just like in the case of Dr. Hurwitz, a few cooperating witnesses looking to get reduced sentences are telling prosecutors exactly what they want to hear. (The Feds seem intent on indicting and convicting a range of state politicians for engaging in what appear to be quite ordinary, common, even if not entirely pretty political activities – all of which will be the subject of a future series of columns for “Injustice Department.”)

Newspaper reporters and lobbyists also face threats ofprosecution for disclosing information seen by the feds as confidential or classified pursuant to statutes that nobody can understand. One only need to look as far as Julian Assange for an example of the danger faced by those seeking to bring the nebulous workings of the national security state into the glare of transparency. The WikiLeaks founder is currently seeking asylum in the Ecuadorian embassy in London in order to avoid extradition to Sweden on seeminglytrumped up sexual assault charges. There is now evidence that a grand jury in Virginia is investigating the possibility of charging him with violating the Espionage Act, a notoriously vague and dangerous law enacted in 1917 at the height of World War I’s jingoistic paranoia. The Espionage Act has been used to ignominious effect periodically since then, and was famously (or infamously, depending upon one’s point of view)used during the Bush years against Steven J. Rosen and Keith Weissman, two lobbyists for the American-Israeli Public Affairs Committee. They were charged in 2006 with violating the Act because they merely received classified information about Israeli affairs from government officials. Needless to say, such leaks of classified information regarding Israeli affairs are standardoperatingprocedure, so the charges against Rosen and Weissman sent shockwaves through the American journalistic and lobbying communities. But the dismissal of the charges against Rosen and Weissman in 2009 – when the Department of Justice recognized that it was too uphill a climb to try to apply the Espionage Act to such common lobbying by friends of Israel – did not portend a more sensible governmental interpretation generally of this statute. As the Obama administration’s desire to prosecute Bradley Manning and other leakers under the Espionage Act shows, there is still much danger for the current and future Assanges of the world whose only crime is to use new technology and novel techniques to inform the American public of their government’s deeds andmisdeeds.

One must also not forget the plight of humanitarian aid organizations, which have operated under a sword of Damocles ever since the Supreme Court decided the case of Holder v. Humanitarian Law Project in June of 2010. These organizations can now be indicted any time a federal prosecutor feels that they are rendering “material assistance” to terrorists, even when it is quite evident that they are, in reality, trying to bring violent groupswithin the umbrella of international law and peaceful cooperation. The Supreme Court, astonishingly, held that there was nothing vague about Congress’s definition of material support as “training,” “expert advice or assistance,” “service” and “personnel,” and Chief Justice Roberts even went so far as to warn Humanitarian Law Project that their conduct of litigation may run afoul of the law! Making the tenuous assertion that even legal humanitarian assistance would free up the terrorist organizations’ resources to use for unlawful activities, Roberts even managed to dismiss HLP’s quite sensible argument that there should be a distinction between providing expert advice in such dubious enterprises as, say, plastic explosives,and advice in such legal ventures as peace negotiations and international law. Of course, the Chief Justice neglected to address the question of whether George H. W. Bush should be locked up for his facilitation of the 1991 Madrid Conference between Israel and affiliates of the PLO, or whether Bill Clinton should do time for the phone calls he placed to Northern Irish groups to pressure them into accepting the Good Friday Agreement in 1998. But humanitarian aid groups are not former presidents, and the sword dangling above their heads is waiting to drop, even if they are trying to aid a terrorist organization in renouncing its violent ways.

When one steps back and takes in a broader view than Juszkiewicz allowed himself to see, it is apparent that the problem is not justa war against capitalism. When a businessman is harassed by overzealous prosecutors, he declaims a war on business just as when a newspaper is harassed, it declaims a war on journalism. It would be a boon to the nation as a whole if those under attack by federal prosecutors could better understand the scope of the problem: they are victims of a war against all of civil society, waged by a Department of Justice wielding incomprehensibly vague and broad criminal statutes enacted by a Congress that too often seems not to know what it’s doing. The supposed restrictions that federalism imposes upon the power of the national government become a farce in the face of such a tangle of laws and regulations, and we all stand to lose from such an outcome.

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